Federal Communications Commission DA 10-443 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Faith Trinity Assemblies Licensee of Station WZYZ(FM) Spencer, Tennessee ) ) ) ) ) ) ) Facility ID No. 92532 NAL/Acct. No. MB-20074141008 FRN: 0007879455 File No. BRED-20040721AHP FORFEITURE ORDER Adopted: March 15, 2010 Released: March 16, 2010 By the Chief, Audio Division, Media Bureau: I. INTRODUCTION 1. In this Forfeiture Order we issue a monetary forfeiture in the amount of one thousand five hundred dollars ($1,500) to Faith Trinity Assemblies (“Licensee”), licensee of Station WZYZ(FM), Spencer, Tennessee (“Station”), for its willful violation of Section 73.3539 of the Commission’s Rules (“Rules”)1 by failing to timely file a license renewal application for the Station. II. BACKGROUND 2. On January 30, 2007, the Bureau issued a Notice of Apparent Liability for Forfeiture (“NAL”) in the amount of one thousand, five hundred dollars ($1,500) to Licensee for willfully violating Section 73.3539 of the Rules, based on the fact that it failed to timely file a renewal application for the Station. As noted in the NAL, Licensee’s renewal application for the Station’s license term was due on April 1, 2004, four months prior to the August 1, 2004, expiration date.2 Licensee did not file the application until July 21, 2004, and provided no explanation for the untimely filing of the renewal application. 3 In response to the NAL, Licensee submitted a letter (“Letter”) on March 16, 2007. 3. In its Letter, Licensee asserts that the proposed forfeiture should be cancelled because: (1) its failure to timely file its renewal application was inadvertent, and (2) it is a non-profit entity. III. DISCUSSION 4. The forfeiture amount proposed in this case was assessed in accordance with Section 503(b) of the Communications Act of 1934, as amended (“Act”),4 Section 1.80 of the Rules,5 and the 1 47 C.F.R. § 73.3539. 2 See 47 C.F.R. §§ 73.1020, 73.3539(a). 3 Faith Trinity Assemblies, Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture, 22 FCC Rcd 1524 (MB 2007). The Commission granted the above-referenced license renewal application on January 30, 2007. 4 47 U.S.C. § 503(b). 5 47 C.F.R. § 1.80. Federal Communications Commission DA 10-443 2 Commission’s Forfeiture Policy Statement.6 In assessing forfeitures, Section 503(b)(2)(E) of the Act requires that we take into account the nature, circumstances, extent and gravity of the violation and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require.7 5. In its Letter, Licensee states that its failure to timely file the renewal application was unintentional and that as such, the forfeiture should be cancelled. Dorothy Wanamaker, Licensee’s secretary, explains she was “not very computer literate and did not know how to go ‘on line’ to file the [renewal form].”8 Ms. Wanamaker further states that on March 23, 2004, she asked the school administrator, Mr. Emory Thompson, to file the renewal form electronically.9 Licensee was not aware that Mr. Thompson had not finalized the submission until July 21, 2004, when it contacted and spoke with a representative of the Bureau.10 6. As the Commission has held, violations resulting from inadvertent error or failure to become familiar with the FCC's requirements are willful violations.11 In the context of a forfeiture action, “willful” does not require a finding that the rule violation was intentional. Rather, the term “willful” means that the violator knew that it was taking (or, in this case, not taking) the action in question, irrespective of any intent to violate the Rules.12 While we understand that Licensee’s staff was unfamiliar with the online renewal process, Faith Trinity Assemblies, as the licensee, was ultimately responsible for ensuring it complied with the Commission’s Rules by filing a timely renewal application.13 7. Licensee also argues that the forfeiture amount be cancelled because it operates a non- profit station.14 It is established Commission policy that there is no proposed forfeiture exemption or 6 The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and Order, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999). 7 47 U.S.C. § 503(b)(2)(E). 8 Letter at 1. 9 Id. 10 Id. (“Apparently, Mr. Thompson had completed the form but failed to hit some button that would finalize the submission and actually process it.”). 11 See PJB Communications of Virginia, Inc., Memorandum Opinion and Order, 7 FCC Rcd 2088 (1992); Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4387 (1991), recon. denied, 7 FCC Rcd 3454 (1992) (“Southern California”) (stating that “inadvertence … is at best, ignorance of the law, which the Commission does not consider a mitigating circumstance”); Standard Communications Corp., Memorandum Opinion and Order, 1 FCC Rcd 358 (1986) (stating that “employee acts or omissions, such as clerical errors in failing to file required forms, do not excuse violations”). 12 See Five Star Parking d/b/a Five Star Taxi Dispatch, Forfeiture Order, 23 FCC Rcd 2649 (EB 2008) (declining to reduce or cancel forfeiture for late-filed renewal based on licensee’s administrative error); Southern California, 6 FCC Rcd at 4387. See also Domtar Industries, Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 13811, 13815 (EB 2006); National Weather Networks, Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 3922, 3925 (EB 2006). 13 See, e.g., Educational Media Foundation, Letter, 23 FCC Rcd 15366 (MB 2008) (citing Request for Waiver by Center City School, Order, 17 FCC Rcd 22424, 22426 (WCB 2002) (“it is the applicant who has responsibility ultimately for the timely submission of its application.”)). See also Bible Broadcast Church School, Forfeiture Order, DA 10-344 (MB rel. Feb. 26, 2010) (issuing a forfeiture order for violating Section 73.3539 of the Rules where licensee created its application, but failed to complete the filing process by hitting the “File Form” button.). 14 Letter at 2. Federal Communications Commission DA 10-443 3 reduction based on the noncommercial status of a station.15 We therefore decline to reduce the forfeiture amount based on the Station’s noncommercial status. 8. We have considered Licensee’s Letter and the record of this case in light of the above statutory factors, our Rules, and the Forfeiture Policy Statement. We conclude that Licensee willfully16 violated Section 73.3539 of the Rules and that no mitigating circumstances warrant cancellation or further reduction of the proposed forfeiture amount. IV. ORDERING CLAUSES 9. Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the Communications Act of 1934, as amended, and Sections 0.283 and 1.80 of the Commission’s Rules,17 that Faith Trinity Assemblies SHALL FORFEIT to the United States the sum of one thousand five hundred dollars ($1,500) to for willfully violating Section 73.3539 of the Commission’s Rules. 10. Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the Commission's Rules within 30 days of the release of this Forfeiture Order. If the forfeiture is not paid within the period specified, the case may be referred to the Department of Justice for collection pursuant to Section 504(a) of the Act.18 Payment of the forfeiture must be made by check or similar instrument, payable to the order of the Federal Communications Commission. The payment must include the NAL/Acct. No. and FRN No. referenced in the caption above. Payment by check or money order may be mailed to Federal Communications Commission, at P.O. Box 979088, St. Louis, MO 63197-9000. Payment by overnight mail may be sent to U.S. Bank--Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be made to ABA Number 021030004, receiving bank: TREAS NYC, BNF: FCC/ACV--27000001 and account number as expressed on the remittance instrument. If completing the FCC Form 159, enter the NAL/Account number in block number 23A (call sign/other ID), and enter the letters “FORF” in block number 24A (payment type code).19 Requests for payment of the full amount of the forfeiture under an installment plan should be sent to: Associate Managing Director-Financial Operations, Room 1-A625, 445 12th Street, S.W., Washington, D.C. 20554.20 15 See, e.g., Des Moines Independent Community School District, Memorandum Opinion and Order, 24 FCC Rcd 3869, 3871 (MB 2009), citing Bible Broadcasting Network, Inc., Forfeiture Order, 23 FCC Rcd 8743, 8745 (MB 2008) (rejecting licensee's argument that its forfeiture should be cancelled or reduced because of its noncommercial educational status). See also Lebanon Educational Broadcasting Foundation, Memorandum Opinion and Order, 21 FCC Rcd 1442, 1446 (EB 2006) (“Where the Rule is violated, Section 1.80 provides that a monetary forfeiture may be imposed, and there is no exemption or reduction based on the noncommercial status of a station.”). 16 Section 312(f)(1) of the Act defines “willful” as “the conscious and deliberate commission or omission of [any] act, irrespective of any intent to violate” the law. 47 U.S.C. § 312(f)(1). The legislative history of Section 312(f)(1) of the Act clarifies that this definition of willful applies to Sections 312 and 503(b) of the Act, H.R. REP. No. 97- 765, 51 (Conf. Rep.), and the Commission has so interpreted the terms in the Section 503(b) context. See Southern California, 6 FCC Rcd at 4387-88. 17 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.283, 1.80. 18 47 U.S.C. § 504(a). 19 See 47 C.F.R. § 1.1914. 20 Id. Federal Communications Commission DA 10-443 4 11. IT IS FURTHER ORDERED, that a copy of this Forfeiture Order shall be sent by Certified Mail Return Receipt Requested and by First Class Mail to Faith Trinity Assemblies, Pine Grove Road, HC69, Spencer, Tennessee 38585 and to Dorothy Wanamaker, 12707 Beersheba Highway, McMinnville, Tennessee 37110. FEDERAL COMMUNICATIONS COMMISSION Peter H. Doyle Chief, Audio Division Media Bureau